The opinion
McCormac, J.,
dissenting. In my opinion, assignment of error two is well taken and the judgment of the trial court should be reversed. I agree that the referendum petitions, either actually or substantially comply with the requirements of law, with the. exception that the petitions do not bear the statements respecting a penalty of election falsification, as required by R. C. 3501.38 (J). As Justice Herbert pointed out in the ease of
Markus
v.
Bd. of Elections
(1970), 22 Ohio St. 2d 197 , 199: “Where statutory provisions relative to the submission of a referendum to the voters have not been complied with, that submission may be enjoined.”
The majority decision has adopted the rule of strict construction concerning statutory requirements for a referendum petition but, in my judgment, whether strict or
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liberal construction rules are adopted, the defect to which I refer is fatal. As part of an election reform law, the General Assembly enacted R. C. 3501.38 (J), and it became effective on September 27, 1974. That statute, applicable to referendum petitions, provides as' follows:
• “ (J) All declarations of candidacy, nominating petitions, or other petitions under this section shall be accompanied by the following statement in bold face capital letters THE PENALTY FOR ELECTION FALSIFICATION IS IMPRISONMENT FOR NOT MORE THAN SIX MONTHS, OR A FINE OF NOT MORE THAN ONE THOUSAND DOLLARS, OR BOTH.”
The stipulated facts indicate that that provision was not contained on the referendum petition but instead the petition contained the following words outlined in a red box:
“NOTICE
“Whoever knowingly signs this ■ petition more -than once, signs a name other than his own, or signs when not a legal voter, is liable to prosecution.”
As is noted, the actual notice contained on the referendum petitions, which were filed with the board of county commissioners on November 20, 1974, almost two months after R. C. 3501.38 (J) became effective, deviates from the specific and mandatory statutory requirements in two respects: first, the warning language is in small print, rather than in bold face capital letters; • second, the notice actually-given merely refers to liability to prosecution, rather than the specific penalty of imprisonment for not -more than six months or a fine of not more than Pne thousand dollars or' both.
• The trial court’s finding as to the claim that this deviation voided -the petitions- was that “the notice language used is warning of possible criminal penalties and meets the statutory requirements.” The required statutory language is mandatory and express. The trial court and the majority decision seek, by rule of construction, to construe this-specific requirement pf the legislature into.only a general warning of possible prosecution. It would seem that the
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intent of the General Assembly was to provide a very express warning, fnily set ont in bold capital letters, to deter possible signers from signing in violation of the law. An argument that the method used by petitioners substantially complies with the express requirement is merely conjecture. No one, at least based on the evidence stipulated in this case, is able to say that the warning actually given serves the same deterrent purpose as the warning expressly required by the General Assembly. To hold otherwise is, in effect, to ignore the express statutory language and to say that the General Assembly merely required a warning of prosecution.
Consequently, in my opinion, the petitions are fatally defective and the board of elections should be enjoined from submitting the question of the rezoning of the affected tract of land for rejection or approval at the primary election on June 3, 1975.